Terms & Conditions

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

1. General

The InnoCal Solutions division of Cole-Parmer Instrument Company (“Seller”) hereby offers for sale to the buyer (“Buyer”) the Innocal services (the “Services”) on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Seller’s commencement of the services provided hereunder will constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to the Services provided by Seller to Buyer. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.

2. Price

All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice unless otherwise set forth in writing by Seller. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Services will be as specified by Seller or, if no price has been specified or quoted, will be Seller’s price in effect at the Services are provided. All prices are subject to adjustment on account of changes in specifications, quantities or shipment arrangements, or other terms or conditions which are not part of Seller’s original price quotation.

3. Taxes and other charges

Prices for the Services exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Services covered hereby, all of which taxes and duties must by paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

4. Terms of payment

Seller may invoice Buyer upon completion of the Services for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller an administrative fee of one and one-half percent (1.5%) per month to cover Seller’s internal costs associated with efforts to collect amounts due, together with all other costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer’s financial condition does not justify the terms of payment specified or in the event that Buyer’s past due balance is excessive in Seller’s sole judgment. All payments shall be made in U.S. Dollars.

5. Termination or delay in performance of services

Seller reserves the right to stop performing Services in whole or in part or to terminate the performance of Services if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All Service dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in Services or failure to perform Services which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the Services within a reasonable period of time.

6. Warranty

Seller warrants to Buyer that the Services will be performed in compliance with the calibration certificate provided by Seller as of the date of completion of the Services. If Seller determines, in its reasonable discretion, that the Services were not performed in compliance with the foregoing warranty, the Seller, at its option, will re-perform the Services or refund the amount paid by Buyer for the Services.

The obligations created by this warranty statement to re-perform services or refund the cost of services shall be the sole remedy of buyer in the event of non-compliance with the warranty. Except as expressly provided in this warranty statement, seller disclaims all other warranties, whether express or implied, oral or written, with respect to the services, including without limitation all implied warranties of merchantability or fitness for any particular purpose.

7. Ideminfication

7.1 By Seller.Seller agrees to indemnify, defend and save Buyer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) (“Indemnified Items”) for injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of Services at Buyer’s premises under this Agreement; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents, representatives or contractors, (ii) by any third party, (iii) use of an instrument that has been calibrated by Seller in an application or environment for which it was not designed or (iv) modifications of an instrument that has been calibrated by Seller by anyone other than the manufacturer of the instrument without the manufacturer’s prior written approval. Buyer shall provide Seller prompt written notice of any third party claim covered by Seller’s indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section.

7.2 By Buyer.Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of an instrument that has been calibrated by Seller in an application or environment for which it was not designed; or (iii) modifications of an instrument that has been calibrated by Seller by anyone other than the manufacturer of the instrument without the manufacturer’s prior written approval.

8. Limitation of liability

Notwithstanding anything to the contrary contained herein, the liability of seller under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of seller for breach of warranty (the sole remedy for which shall be as provided under section 6 above)) shall not exceed an amount equal to the total purchase price theretofore paid by buyer to seller with respect to the services giving rise to such liability. Notwithstanding anything to the contrary contained herein, in no event shall seller be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether seller (a) has been informed of the possibility of such damages or (b) is negligent.

9. Dates; force majeure

Performance of Services is subject to delays due to acts of God or public enemy, fires, severe weather, strikes and labor shortages, delays caused by governments (including government priority, preference or allocation), and any other causes beyond Seller’s control. Buyer will reimburse Seller for all costs incurred by Seller due to any delay caused by Buyer (which may include processing fees for rescheduling, storage charges or travel expenses), Buyer’s agents, Buyer’s customers or any other entity working in conjunction with Buyer upon presentation of reasonable supporting documentation.

10. Pollution

Buyer agrees to indemnify, defend, and hold Seller harmless against any loss, damage, expense, claim and any other cost or liability (including, but not limited to, fines and penalties to the extent permitted by law, clean-up or other remedial or containment costs, or legal, technical or other professional fees) arising as a result of any pollution, contamination, or other loss or damage to the environment or natural resources attributable to the act or omission of Buyer or its employees, agents or customers which arises in connection with any Product or service provided by Seller.

11. Solvency

Buyer’s order is deemed to be a representation that Buyer is solvent and able to pay for Products ordered. If Buyer fails to make payment when due or makes an assignment for the benefit of creditors or if bankruptcy or insolvency proceedings are instituted by or against Buyer, Buyer will be deemed to be in default, and Seller will have the right to terminate its obligations by written notice to Buyer, but such termination will not affect Buyer’s obligation to pay for Services performed and Services in progress. Buyer shall reimburse Seller for all administrative and legal costs incurred by Seller to enforce any portion of an order, including costs associated with the collection of any unpaid amounts.

12. Confirming orders

Buyer shall not send a confirming order unless its ordering system requires one. Buyer must state any special conditions that are on its confirming order when it first places its order with Seller. Buyer shall mark confirming orders clearly to prevent duplication.

13. Miscellaneous

(a) Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller’s prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its choice of law provisions. (c) In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. (d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (f) Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (g) Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees that all drawings, prints and other technical material that Seller provides to Buyer, whether prepared by Seller or by third parties under contract to Seller, may contain data that embody trade secrets and confidential know-how of commercial value to Seller or third parties under contract to Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer’s internal purposes and in connection with the Services supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (h) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.